This industry win on tower siting is primed for debate

editor's corner

The payroll tax extension law that was signed into law in February contained a multitude of wireless industry components, including plans for spectrum auctions and the allocation of 700 MHz D-block spectrum to public safety. One considerably less-heralded aspect was Section 6409, which concerns antenna siting and promises to keep lawyers and courts busy for years.

This section of the Middle Class Tax Relief and Job Creation Act of 2012 is being touted by some as a huge win for the wireless industry in its battle to build out broader and denser network coverage. Specifically, Section 6409 says, "State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station."

The law specifies that an "eligible facilities request" covers any modification of an existing wireless tower or base station that involves colocation of new transmission equipment, removal of transmission equipment; or replacement of transmission equipment.

This should have positive implications because colocation requests and even minor modifications to existing towers have often embroiled operators in unwieldy local zoning approval processes akin to what it takes to gain approvals to build an entirely new antenna site. As operators modernize and upgrade their networks to better deliver mobile broadband services, anything that streamlines the process and provides regulatory certainty is welcome.

Immediately after the law was enacted, Michael Fitch, president and CEO of trade group PCIA, which represents wireless infrastructure interests, issued a statement calling the Sec. 6409 "a common sense measure that will significantly reduce regulatory burdens on infrastructure deployment--saving the industry hundreds of millions of dollars over many years."

Yet Section 6409 is not sitting well with many critics of cell tower sites, and local jurisdictions are preparing to fight back. Consultant Jonathan Kramer, an attorney who frequently hires out to help local jurisdictions with siting issues, stated on his blog, "Local governments are already talking about how to work with and around the worst parts of Section 6409." Kramer notes that many members of the public as well as government officials feel site reviews, for new as well as existing sites being modified, are "necessary to promote community aesthetics, and to deter the expansion of legal non-conforming uses."

Kramer has publicly noted that one sticking point with the new law is the definition of "tower," arguing that colocating antennas on structures that do not meet the definition are not protected by Sec. 6409.

On the flip side, Lisa Murphy, who often represents wireless industry interests in her role as an attorney with Norfolk, Va.-based LeClairRyan, has stated in her blogs that she believes Section 6409 "will likely trump state and local ordinances to the extent that they prevent modifications to 'grandfathered' sites, sites that were never zoned or that pre-date current wireless tower ordinances" and that Section 6409 will apply to colocation on all structures.

However, she also acknowledges that "there is no record of Congress' intent with regard to the meaing of the phrase "existing tower," which leaves that definition open to interpretation.

The jury is still out, so to speak, regarding the real-world interpretations and actual impact of Section 6409. As with most laws, either new or old, the main thing they guarantee is healthy revenue streams for attorneys arguing for either side.--Tammy